What happens when we disagree about rights?Prince Arthur Herald, 25 July 2013

The Charter of Rights and Freedoms is an extremely popular political institution, being viewed by most Canadians as a fundamental pillar of the Canadian state. But the Charter is not without its critics, such as the right-wing scholars F.L. Morton and Rainer Knopff, and the left-wing theorist Andrew Petter, who see constitutional rights protections as a constraint on the pursuit of a just society. When it comes to intrinsic justifications for judicial review, however, defenders of the Charter habitually rest on three arguments in its support.

Though they may appear to be knock-down points in favour of judicial review, further examination should reveal them to be weak and, when exposed to the likelihood of reasonable disagreement about individual rights, quite indefensible as well. Rebutting these claims is central to the anti-Charter case that I am trying to advance.

First, it is argued that while judicial veto power is indeed inconsistent with majoritarian decision making, it can be defended as democratic because its introduction was brought about by democratic means — namely, through a set of negotiations and an eventual constitutional amendment, which required popular consent. But the mere introduction of a particular decision-making procedure by a majority does not make that procedure democratic. After all, a majority could vote in a dictatorship, but this would not render the dictatorship democratic. Likewise, voting in a set of nine lawyers as a country’s supreme political institution does not automatically legitimate the process of judicial lawmaking. And this argument fails to appreciate that theCharter entrenches a different hierarchy of decision-making procedures than previous constitutional limits upon parliamentary power. In the British North America Act, boundaries were established through a division of jurisdiction between federal and provincial legislatures, but the essential majoritarian processes remained intact. In contrast, the Constitution Act, 1982 created a process of decision-making superior to, and hence out of the reach of, democratic institutions.

Secondly, it is claimed that democracy is about more than “majority rules” and demands the protection of individual rights. Therefore, say Charter supporters, judges should be able to overrule majorities when the latter’s decisions conflict with rights. Of course, democracies may do the best job of protecting individual rights, but this is a consequence of the model, and is very different from saying that democracy means rights-protection at the expense of majority rule, which is flatly untrue. Democracy is, foremost, a principle of decision-making rooted in the ideal of self-governance and autonomy, in which citizens participate in the forming of their own laws. This includes controversial statutes involving matters of high principle such as inalienable rights. And contrary to conventional belief, there is nothing unjust about having to convince a majority of the population that one’s claim to a particular moral and legal right is valid.

It is important to acknowledge that a democratic system may constitute certain inherent rights, without which the governing body would cease to be democratic at all. I’m speaking here about the right to vote and the right to stand for office. It could be said that unless these are inviolable and universal, a democracy could simply dissolve itself by disenfranchising the population through majoritarian means. But if this objection is cogent, it would only justify the judicial supervision of procedural rights, not substantive ones. Such is the philosophy of the late Professor John Hart Ely, who believed that American due process provisions should only be interpreted procedurally, meaning that while laws preventing black and female suffrage should be struck down by courts, substantive questions about welfare, health services, taxation, economic regulation, collective bargaining, sexual freedom, and abortion should be the province of legislatures alone. Apply this theory to Canadian politics, and the Charter’s mandate effectively evaporates.

Third, it is suggested that parliamentarians are simply bad at handling controversial questions that implicate rights and should therefore not be trusted with them. In a critique of my position entitled “The Charter: Can our rights be protected without it?”, Jonathan Coady listed a series of injustices that were conducted under parliamentary tutelage in the pre-Charter era, with the intention of discrediting the prospect of right-protection by parliamentarians. This argument is misleading because the cases he cites, such as the internment of Japanese-Canadians during World War II, may not necessarily have happened differently had there been a constitutional bill of rights, since the judges of the time may not have intervened on what we now understand to be the right side. We know of this possibility because the Americans did the same thing to Japanese residents with judicial approval, bill of rights notwithstanding.

Furthermore, it is inaccurate to present the pre-Charter epoch as a howling wasteland that was salvaged only by the Constitution Act, as many flagrant mishaps in jurisprudence laced the pre-1982 period in the United States — a similar society with a comparable legal system and a much longer experiment with constitutional rights. To take but one example that may appeal toCharter defenders, the Lochner era (1899-1837) saw numerous abrogations of statutory labour-force protections by the U.S. Supreme Court, premised on individual liberty of contract. The Lochner v. New York ruling, for which the period is named, found that even a law limiting the maximum working hours of bakers was unconstitutional! And Canada’s Charter age has been similarly plagued by judicial offenses to reason, such as the Supreme Court’s repeated attempts to block rape-shield legislation in the 1990s, which were eventually overcome by the Chrétien Liberals. As these instances show, the fact that “entrenching individual rights in the Charterprovides a layer of insulation from popular decision-making” (Coady’s phrase) and “establish[es] them as legal principles to be applied by courts” (Robert Jackson’s phrase) is precisely the problem.

This view is shared by the constitutional scholar Andrew Petter, a former member of the British Columbia legislature and author of The Politics of the Charter (University of Toronto Press, 2010). In considering the utility of judicial review as an instrument of progress, he writes that, “The victories that have been won in [the twentieth] century on behalf of workers, the unemployed, women, and other socially and economically disadvantaged persons have been achieved, for the most part, through democratic action. . . . The lot of women has been advanced, to the degree that it has, by means of legislative intervention in the form of labour standards legislation, minimum wage laws, and human rights codes”, not judicial review. Even if one does not share Petter’s view of distributive justice, which includes support for “harnessing the powers of the state to redistribute wealth and to place limits on the exercise of ‘private’ economic power”, he demonstrates that the promise of constitutional rights is illusory. More importantly, he shows that allegiance to the Charter need not be drawn on ideological lines, as illegitimate intervention in democratic affairs poses problems for both liberals and conservatives.

The prospect of reasonable disagreement about rights is the strongest argument against judicial review. It is often assumed that when rights are spoken of, their meaning and scope are widely agreed upon, and that the only remaining problem is to find the best means of securing them. This assumption is unfounded, as almost all of the fundamental rights that we cherish carry immense baggage, rooted in legitimate debate about their implications for the law. Consider the freedom of expression: Despite near-universal agreement at the surface, at least in liberal-democratic countries, the details reveal free speech to be a divisive human right. While everyone tends to agree that libel and slander should be penalized, there is great disagreement about the censorship of hate speech, criticism of religion and ethnic minorities, “blasphemy”, pornography, and tobacco advertising, each of which our legal system must address. Another example is religious liberty and secularism. Though almost everyone agrees generally with freedom of religion and conscience, the policy specifics are altogether controversial, even for people who find themselves on the same side of the religious/nonreligious divide. Does religious freedom, for example, require that the state provide religious education to all children, if their parents desire it, or should people simply be allowed to send children to private schools with public accreditation, or should the state mandate secular education for everyone under the mantra of societal cohesion? Likewise, should a law that conflicts with a religious injunction be overturned, accompanied by a clause for religious accommodation, or apply to everyone notwithstanding the conflict? And should religious charities be given a tax exemption, even if their goal is proselytization and not the alleviation of poverty and suffering? Given these ambiguities about our enumerated rights, how can it possibly be said that disagreement about them is irrelevant, or that ordinary Canadians should not have a say in their determination?

All of this casts indubitable suspicion upon the Charter project, whose caretakers deserve the most criticism of all. Placing responsibility for interpreting rights in the hands of unelected and unaccountable judges is wrong, as they are not trained to resolve substantive political questions that everyone should have a role in deciding. It is also a resounding insult to Canadian citizens, who are more than fit to govern themselves without paternalistic supervision. These are points to be taken seriously, and despite their shattering implications for the Charter’s legitimacy, represent no sleight of hand.